Kernaghan v. Sunshine Min. Co.

• Decision Date: 25 June 1952
• Docket Number: No. 7768,7768
• Citation: 73 Idaho 106,245 P.2d 806
• Parties: KERNAGHAN v. SUNSHINE MINING CO.
• Court: Idaho Supreme Court

Page 806

245 P.2d 806

73 Idaho 106

KERNAGHAN v. SUNSHINE MINING CO.

No. 7768.

Supreme Court of Idaho.

June 25, 1952.

E. B. Smith and Walter M. Oros, Boise, for appellant.

H. J. Hull & Sons, Wallace, for respondent.

TAYLOR, Justice.

This is a proceeding under the occupational disease compensation law. The appellant claims compensation for total disability due to silicosis. The respondent (employer) is self-insured.

One of the issues tried is the extent to which disability was due to silicosis. §§ 72-1208, 72-1218, 72-1220 I.C. On this the board found:

'* * * It is not shown that tuberculosis of the lungs is a complicating factor.

'The board finds that claimant is totally and permanently disabled for remunerative work, but such disability is not due to silicosis alone. Silicosis is, however, an essential causative factor in his disability. As pointed out by the doctor, claimant's two attacks of pneumonia have already demonstrated his susceptibility to respiratory infection, which susceptibility is a direct result of silicosis.

'But in this claimant's case old age is also a major factor. * * *

'With two major causes of disability, were this a compensable case, the board would apportion a 50% recovery on account of silicosis.'

On appeals from the Industrial Accident Board this court is limited to a review of questions of law. Const. art. 5, § 9; §§ 72-608, 72-609 I.C.

If the findings of the board are supported by substantial competent evidence they will not be set aside on appeal. § 72-609 I.C.; Walker v. Hogue, 67 Idaho 484, 185 P.2d 708; Stralovich v. Sunshine Mining Co., 68 Idaho 524, 201 P.2d 106.

The claimant was 67 years of age and the board observing him on the stand as a witness found that his 'mental alertness is also diminished.' Old age is a factor which the board may take into consideration in determining the cause of disability. Eagle Indemnity Co. v. Hadley, 70 Ariz. 179, 218 P.2d 488. Claimant's attending physician, Dr. Robert W. Cordwell, gave a detailed account of his diagnosis and treatment of the claimant over the period from February 28, 1949, to March, 1950. From this it appears claimant was suffering from silicosis, grade 2, which standing alone is not generally regarded as totally disabling. While the doctor purported to attribute claimant's disability entirely to silicosis, he, at the same time, testified that he took into consideration other clinical symptoms, including two attacks of pneumonia, the appearance of the man himself, and also his age. The doctor also described two traumatic chest injuries, one sustained in a car accident in which ribs were fractured. However, he did not testify as to whether these injuries were contributing factors to disability.

'The Industrial Accident Board, specializing as it does in the hearing of industrial accident cases, must be presumed by reason of its experience to be able to judge the causative factors in a particular case on both medical and non-medical evidence.' Walker v. Hogue, 67 Idaho 484 at page 489, 185 P.2d 708, at page 710.

It was for the board to find the cause or causes of disability and to apportion the disability among the factors involved. Its findings, being supported by substantial and competent evidence, are binding upon this court.

The other issue tried is whether claimant had been injuriously exposed to silicosis in respondent's employment within two years immediately preceding his disablement. § 72-1209 I.C. The record shows claimant was employed by the respondent intermittently from 1927 to December 22, 1949. From 1927 to 1936 he worked underground. In 1936 he left respondent's employ and worked underground for the Sunshine Consolidated for fourteen months. He returned to respondent's employ in 1937, where he continued to work mostly underground until January 10, 1941, when he was idled by the accident mentioned until October 4, 1941. From October 7, 1941, to August 25, 1944, he was employed on the surface except for various periods when he was off on account of illness, vacations, or leave. From August 25, 1944, to February 4, 1946, he worked as 'pumpman' underground. From February 6, 1946, to the final termination of his employment, December 22, 1949, he was employed on the surface, except that he was underground one day, May 8, 1947, when he painted a hoist on the 3,100 foot level. In this connection the board found:

'The most probable date of Kernaghan's last hazardous exposure is January 10, 1941, when he last worked underground, other than as a pumpman at a relatively dust-free station. His last underground employment of any character was February 4, 1946.

'The board finds that his surface work since that time did not involve hazardous exposure to silica dust.'

On December 22, 1949, while on the job, claimant suffered a chill and was taken to a hospital where Dr. Cordwell diagnosed his condition as penumonia. He was discharged January 9, 1950, as 'better.' February 27, 1950, he was again admitted to the hospital suffering pneumonia. On March 2nd the doctor advised that he shouldn't work, that he should be retired.

During the course of his employment on the surface the claimant worked mostly in the shop. At irregular intervals when the employee who regularly cleaned out the dry room was off the job, the claimant was called upon to do that work. This is a room where the underground miners change from work clothes to street clothes, taking off their wet clothes worn underground, hanging them up to dry, taking a shower and putting on their street clothes at the end of each shift; and where the men going on shift take off their street clothes, 'beat out' their then dry work clothes over a bannister prior to putting them on to go into the mine. There is considerable testimony on both sides as to the condition of this room with reference to dust. Considering that claimant was there only occasionally, except for one occasion when he testified he performed that duty five weeks straight; that it was usually less than half a day's work, and consisted of picking up trash off the floor and then washing the room out with water from a hose; it appears that the board's finding is supported within the rule.

Claimant also urges that during this period he was exposed to silica dust in the crushing plant. In connection with his shop work he went to the mill each Monday morning to sort out waste metal or 'tramp iron,' which could be reclaimed, and which was collected from the ore by the magnetic head pulley where the conveyor delivered the ore to the primary crusher. The scrap was set aside in boxes by the mill crew. This sorting required, as variously stated by claimant, from less than an hour to three hours on each occasion. The testimony is also conflicting considering the conditions in the crushing plant as to silica dust. The evidence on behalf of the respondent shows an elaborate dust removal and collecting system, which it maintained in operation in that plant.

Dr. Paul Ellis, an authority of some note on silicosis, and co-author of a paper on the subject, cited by appellant, testified as to the standard determined and accepted by the medical profession with respect to the quantity of silica dust that is injurious to persons exposed thereto. This standard he stated to be that inspired air containing not more than five million particles of free silica, below ten microns, per cubic foot is considered safe. That is, air that does not contain a greater concentration of the harmful particles is air in which a man may work for many years without injury. The concentraction of free silica in the air is determined by multiplying the total dust count by the percentage of free silica known to be present. The board in its findings accepted this standard as a basis for its determination of what constitutes 'hazardous' exposure. It is, of course, the duty of the board to...